In a surprise 4-3 vote late last week, the Supreme Court upheld the University of Texas' affirmative action plan, holding that race could be one factor that the university could use to help ensure a diverse student body.

Written by Justice Kennedy, the opinion upheld the ideal of a diverse student body and allowed the use of race even in the face of arguments that such a criteria would violate the equal protection clause of the constitution. Although the decision technically only applies to university settings, and indeed, some states, such as California, already have laws banning the use of affirmative action, the case is widely viewed as a bellwether indicating the court's view of affirmative action and the value of diversity in general.

In the workplace, affirmative action is generally viewed as legal only in very narrow circumstances such as when you have federal contracts which are subject to executive orders requiring affirmative action because of the documented history of race and gender discrimination in that arena. Similarly, affirmative action has been found to be legal as a remedy in a lawsuit where there is a documented history of race discrimination.

What Should You Do?

As a manager or executive, make sure that you understand your organization's affirmative action requirements and plans, if any. Also, make sure that you understand any diversity and inclusion plans. Diversity and inclusion are different than affirmative action. These are voluntary steps that organizations take in order to weave together a rich tapestry of backgrounds, experiences and goals from all employees in order to achieve the objectives of the business. Affirmative action is usually more narrowly tailored to race, gender and ethnic background.

Did You Know?

All of our workshops for managers and employees on discrimination, harassment, diversity and inclusion issues, include a discussion of affirmative action.